326 Toolkit to Combat Trafficking in Persons
REFLECTION PERIOD AND RESIDENCE PERMIT
Tool 7.1
Reflection period
Overview
This tool discusses the purpose and value of a reflection period for victims. It
offers guidelines for the provision of such reflection periods and showcases some
promising examples.
The reflection period is now recognized as an effective best practice and humanitarian
measure aimed at protecting the human rights of trafficked persons. The reflection period
grants victims of trafficking the possibility of beginning to recover from their experiences
and of making an informed decision about whether to assist and cooperate in criminal
proceedings. For the many victims of trafficking who have irregular immigration status, the
reflection period ensures that they can be provided with appropriate assistance and support,
such as secure housing, psychological counselling, medical and social services and legal
consultation.
Such protection of the victim serves to raise his or her confidence in the State and its ability
to protect his or her interests. Once recovered, a trafficked person with confidence in the
State is more likely to make an informed decision and to cooperate with the authorities in
intelligence-gathering and the prosecution of traffickers.
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The granting of a reflection period, followed by the granting of a temporary or permanent residence permit, is ideally afforded to a victim of
trafficking regardless of whether the trafficked person is able or willing
to give evidence as a witness.
Special attention should be paid to child victims of trafficking; their best
interests should be the primary consideration in all policies and procedures
involving them.
Discussion on the reflection period in destination countries
(Global Alliance against Trafficking in Women)
The GAATW e-Bulletin Issue 5 concerning access to justice for trafficked persons focused
on the topic of a reflection period in destination countries, which it asserts is paramount in
helping trafficked persons recover from their experience without feeling the pressure of detention and/or deportation, thereby enabling them to make informed choices about their future.
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Immigration status of victims and their return and reintegration
During the reflection period, presumed trafficked persons are afforded legal status and
protection from detention and deportation in destination countries. During this period,
trafficked persons have access to certain support services, such as appropriate and secure
housing, psychological counselling, social services and health care, as well as professional
advice, including legal counselling. These measures are intended to help them to recover
from the trauma of having been trafficked and to remain safe from the traffickers. The
reflection period is intended for trafficked persons to recover sufficiently from their experience that they might be willing and able to talk about it and to make informed decisions
about whether to take legal action against the trafficker and to pursue legal proceedings
regarding compensation claims. Since such decisions have serious and far-reaching consequences for both the life of the person concerned and for the safety of the family members
in the country of origin, the trafficked person needs to have time to weigh all the possible
consequences of their choice. Advocates with expertise in anti-trafficking and victim protection recommend a reflection period of not less than three months, as is granted by some
destination countries.
Key advantages of the reflection period:
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Trafficked persons are able to access basic services, information and legal counselling
and can receive support from public social services
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Trafficked persons are recognized as victims of crime and therefore granted the
protection measures provided by law
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It increases the ability of the police to gather evidence in investigations
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It allows trafficked persons to make informed decisions about their future
Key disadvantages of the reflection period:
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It is limited in time and this puts pressure on trafficked persons in making decisions on
key issues for their future
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After the reflection period has expired, trafficked persons who are returned to their
countries of origin have to start again from scratch, often suffering revictimization and
reprisals by traffickers
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For the law enforcement authorities, this means that they will miss out on information
for effectively combating trafficking
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GAATW e-Bulletins are available at:
www.gaatw.net
Opinion on the reflection period issued by the European
Commission Expert Group on Trafficking in Human Beings
On 16 April 2004, with a view to determining the role of the European Commission in the
negotiations concerning a European convention on action against trafficking in human
beings, the Commission’s Expert Group on Trafficking in Human Beings issued an
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opinion on a reflection period and residence permits for victims of trafficking in human
beings. In the opinion, the Expert Group emphasized the status of victims of trafficking as
victims of serious crime. In the background to its opinion, it stated that a reflection period,
followed by the issuing of a temporary residence permit, should be granted regardless of
whether the trafficked person was able or willing to give evidence as a witness in legal
proceedings. That, it said, assisted States in fulfilling their obligation to protect the human
rights of trafficked persons and avoided the risk of treating such persons as purely
instrumental in the criminal justice system.
In the opinion, the Expert Group states that:
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A reflection period should be granted immediately to all those who there is reason to
suspect have been trafficked. The purpose of such a reflection period includes identification of whether a person has been trafficked (as well as enabling the person to
recover and to decide upon his or her future course).
앫
The reflection period should be for not less than three months and should include an
obligation to inform the affected person of the assistance services available to him or
her.
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A residence permit should be granted to identified trafficked person following the
reflection period for a period of at least six months, with the possibility of renewal,
irrespective of his or her willingness to act as a witness.
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During the period of validity of the temporary residence permit, trafficked persons should
have access to appropriate and secure housing and medical, psychological, social, legal
and financial assistance, and be authorized to have access to the labour market and to
vocational training and education in order to enable them to recover and take back
control of their lives.
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When the temporary permit expires, if no other kind of residence permit can be issued
on the basis of ordinary domestic law relating to aliens, member States should issue a
residence permit on humanitarian grounds (in particular to vulnerable persons such as
minors and victims of sexual violence or human rights abuses, and in particular if there
is reasonable ground to believe that the victim’s life, health or personal liberty will be
under threat upon return to his or her country of origin).
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Child victims of trafficking should be equally entitled to temporary and/or permanent
residence permits and corresponding rights, independent of the child’s willingness or
capacity to cooperate with the authorities, consistent with the principle of the “best
interests of the child”.
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The full opinion of the Expert Group is available at:
http://europa.eu.int/comm/justice_home/doc_centre/crime/trafficking/
doc/opinion_experts_group_2004_en.pdf
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Immigration status of victims and their return and reintegration
Council of Europe Convention on Action against
Trafficking in Human Beings
The Council of Europe Convention on Action against Trafficking in Human Beings was
opened for signature in Warsaw on 16 May 2005. Article 13 of that Convention addresses
the provision of a recovery and reflection period.
Article 13.
Recovery and reflection period
1. Each Party shall provide in its internal law a recovery and reflection period of at least
30 days, when there are reasonable grounds to believe that the person concerned is
a victim. Such a period shall be sufficient for the person concerned to recover and
escape the influence of traffickers and/or to take an informed decision on cooperating with the competent authorities. During this period it shall not be possible to
enforce any expulsion order against him or her. This provision is without prejudice
to the activities carried out by the competent authorities in all phases of the relevant
national proceedings, and in particular when investigating and prosecuting the
offences concerned. During this period, the Parties shall authorize the persons
concerned to stay in their territory.
2. During this period, the persons referred to in paragraph 1 of this article shall be
entitled to the measures contained in article 12, paragraphs 1 and 2.
3. The Parties are not bound to observe this period if grounds of public order prevent
it or if it is found that victim status is being claimed improperly.
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The Council of Europe Convention on Action against Trafficking in
Human Beings is available at:
http://conventions.coe.int/Treaty/EN/Treaties/Word/197.doc
Guideline on reflection periods
(International Centre for Migration Policy Development)
ICMPD asserts that victims should be offered a reflection period in order to give them time
to recover and to stabilize. The reflection period should be followed by a temporary residence permit. Both the reflection period and the residence permit should be granted to
victims regardless of their willingness to cooperate as witnesses and regardless of whether
or not the perpetrators are prosecuted.
What should be achieved?
During the recovery period, a victim should have access to safe accommodation and to all
necessary assistance (e.g. free medical and legal aid, interpreters, contact with relevant
service providers in the country of origin etc.).
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Victims should be entitled to a reflection period of at least 30 days and up to three
months, during which they can stabilize and reorientate themselves. A reflection period has
a twofold aspect:
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To raise the victims’ confidence in the State and its ability to protect their interests by
offering them the possibility to begin to recover and to take an informed decision about
whether to:
Assist in criminal proceedings
Pursue legal proceedings for compensation claims
Enter a social protection programme
Opt for immediate return home
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To enable the authorities to identify victims of trafficking, including determining whether
or not the person is in fact a victim of trafficking.
Following the reflection period, victims should be granted a temporary residence permit for
a period of at least six months, with the possibility of renewal, independent of the victim’s
willingness to cooperate as a witness. If the victim decides to be a witness in the criminal
case, the temporary residence permit should last until the end of the proceedings. Residence
permits should not be limited to victims who have suffered serious exploitation or limited
to a group of victims who are ambiguously defined under the law.
Who should be involved?
Law- and policymakers, Ministry of Foreign Affairs, Ministry of Interior, other governmental institutions, non-governmental organizations, childcare services and education training
institutions.
How should it be implemented?
The following measures should be considered:
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Creation of a legal and political framework to offer a reflection period of not less than
three months for victims to recover, followed by a temporary residence permit of at least
six months
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Granting a reflection period of up to three months, which should include the obligation
to refer victims of trafficking to service agencies that can offer assistance such as
financial support and integration programmes
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States may consider providing various governmental departments and social protection
organizations that work closely with victims of trafficking with the ability to suggest the
grant of a residence permit to the respective competent authorities through a formal
agreement so as to ensure efficient cooperation and to reduce the authority’s
discretionary power
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Ensure sufficient monetary allocations in a national budget to fund provision of residence permits and all social benefits, including social security, job training, medical and
psychological assistance and legal aid
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Immigration status of victims and their return and reintegration
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Granting of a long-term resident permit if:
Repatriation would pose a serious risk to the safety of the victim of trafficking and/or
her or his family members or if repatriation would cause the risk of being prosecuted
in the home country for trafficking related offences
A social assistance programme has been successfully completed and employment has
been found
Asylum has been applied for in accordance with international refugee law
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If a victim of trafficking is granted a temporary or permanent residence permit, the
victim of trafficking should be entitled to family reunification with her or his minor children, who should be granted a residence permit on the same conditions as the victim
of trafficking
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If there are substantial reasons to believe that family members of the victim of trafficking, including possible children, are at risk in the home country, such family members
should be entitled to temporary or permanent residence on the same conditions as the
victim of trafficking
앫
Conducting risk assessment before deporting or returning a victim of trafficking or deciding upon an application for a permanent residency permit on humanitarian or asylum
grounds.
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Source: ICMPD Guidelines for the Development of a Comprehensive
National Anti-Trafficking Response (Vienna, 2006), available at:
www.childtrafficking.com/Docs/icmpd2_061106.pdf.
ICMPD has also produced a study entitled Listening to Victims:
Experiences of Identification, Return and Assistance in South-Eastern
Europe, which is available at:
www.childtrafficking.com/Docs/Listening_to_victims_1007.pdf
Guideline on a “reflection delay”
(Organization for Security and Cooperation in Europe)
Where victims of human trafficking have been able to escape their situation, whether as a result
of police intervention or in other ways, experience has shown that for various reasons they are
often unable to talk about their suffering and thus unable to present themselves as victims.
Therefore, an important step is to establish a time period during which presumed trafficked
persons are afforded legal status and protection from detention and deportation measures.
During this period, the victims will need access to certain support services, such as:
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Appropriate and secure housing
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Psychological counselling
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Social services and health care
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Professional advice, including legal counselling
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This period may enable victims to pursue legal proceedings for compensation claims. The
reflection delay also enables victims to consider in a less pressured manner whether they
are prepared to testify against the perpetrator. Since this constitutes a far-reaching decision
with serious consequences for both the life of the person concerned and for the safety of
family members in her or his country of origin, the person concerned should have time to
weigh all the possible consequences of her or his choice.
Anti-trafficking and victim-protection experts advocate a reflection delay of not less than
three months.
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Source: National Referral Mechanisms: Joining Efforts to Protect the
Rights of Trafficked Persons; a Practical Handbook (Warsaw, OSCE,
2004), available at:
www.osce.org/publications/odihr/2004/05/12351_131_en.pdf
Reference Guide on Protecting the Rights of Child Victims of
Trafficking in Europe
(United Nations Children’s Fund)
UNICEF clearly states in this reference guide that child victims of trafficking have as much
right to a recovery period as adult victims. However, law enforcement officials and persons
responsible for the administration of justice are required to consider the paramount concern of “the best interests of the child”. This means that at the end of a recovery period,
responsible persons cannot expel or deport a child without considering what is in the best
interests of the child or children concerned. For more information see Tool 7.10.
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The complete guide is available at:
www.unicef.org/ceecis/protection_4440.html
Promising practice
Belgium
In Belgium, victims of human trafficking are granted a reflection period of 45 days. One of
the main conditions for the reflection period is that the victim must break the ties with the
traffickers and accept the assistance of a specialized centre.
If the victim decides to make a statement, she or he is given a residency document called
a “declaration of arrival” (“aankomstverklaring”) for a three-month period. One month
before the expiry of this “declaration of arrival”, the Immigration Office makes enquiries of
the Prosecutor’s Office and, if the person is considered to be a trafficked person and the
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Immigration status of victims and their return and reintegration
complaint against the trafficker is still under judicial investigation, the Immigration Office
may approve the issuance of a second temporary permit of stay, which is valid for six months.
With either of these documents, the victim is allowed to access the labour market. The
victim will also receive social welfare and have the right to education and to legal and
psychological assistance.
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See:
www.antislavery.org/homepage/resources/humantraffic/Belgium.pdf
and www.enawa.org/NGO/Blinn_Final_Report.pdf
Czech Republic
The Government of the Czech Republic provides a 30-day reflection period during which
victims can decide whether or not to cooperate with law enforcement efforts against
traffickers. Victims who assist in the criminal justice process are granted temporary residence and work visas for the duration of the criminal proceedings and upon conclusion of
the trial may apply for permanent residence.
Georgia
Under Georgian law, a victim of trafficking is entitled to a 30-day reflection period in which
to decide whether he or she wants to cooperate with law enforcement bodies in proceedings relating to the crime. This reflection period starts on the date on which the person
applies to a shelter, law-enforcement body or other relevant institution. During this period,
article 371 of the Georgian Criminal Code exempts the person from any criminal liability
for refusing to testify as a witness or victim.
www.stopvaw.org/Measures_and_Actions_Taken_by_Georgia_against_Trafficking_in_Person
s_-_2006.html
Germany
In Germany, victims of human trafficking may be granted a reflection period to enable them
to think about whether they wish to give evidence as a witness against the perpetrator(s) in
court proceedings. The standard reflection period in Germany is four weeks; in some states
this may be extended for up to three months. If, after this period, the victim decides to
give evidence as a witness, she or he is granted a residence permit until the testimony.
www.enawa.org/NGO/Blinn_Final_Report.pdf and
www.kok-potsdam.de/index.php?idcat=54&lang=3&PHPSESSID=afd0c53dec7cef99b5ba0f
6385bc6ba
Moldova
Law No. 241-XVI of 20 October 2005 on Preventing and Combating Trafficking in
Human Beings grants a reflection period of 30 days in Moldova, during which time the
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implementation of any expulsion order is prohibited. Protection and assistance services are
not to be conditioned upon the willingness of victims to make statements and participate
in the prosecution of traffickers. By virtue of article 24 concerning protection and assistance
to foreign citizens and stateless persons who are victims of trafficking, such persons are entitled to a reflection period of 30 days, to psychiatric and psychological counselling, and to
medical and social assistance. Such persons are also to enjoy free of charge legal assistance
for the exercise of their rights at all stages of criminal proceedings and to pursue their civil
claims and lawsuits against persons who perpetrated crimes connected to trafficking, as
provided by the Moldovan Criminal Code.
More information about the reflection period in Moldovan law is available at:
www.legislationline.org/legislation.php?tid=1&lid=7648
Montenegro
The “Instruction on the conditions and the manner of regulating the residence of foreign
citizens—victims of trafficking” issued by the Ministry of the Interior of the Republic of
Montenegro grants victims of trafficking a three-month period of recuperation and reflection.
www.vlada.cg.yu/eng/antitraf/vijesti.php?akcija=vijesti&id=10133
Netherlands
Under the B-9 Regulation, the reflection period allowed for victims of trafficking is three
months. During this period, persons are to be provided with appropriate housing, medical
and legal assistance, and counselling. During this period, victims also receive a monthly
allowance through the Reception of Asylum Seekers Agency, to provide for their living costs.
A key concern is the exclusion from protection under the B-9 Regulation of victims who
do not cooperate in the investigation and prosecution of traffickers.
Norway
Measure No. 7 of the Government of Norway’s 2006-2009 Action Plan to Combat Human
Trafficking concerns the extension of the reflection period to six months. Prior to the introduction of this measure, victims were offered a 45-day reflection period. Under Measure
No. 7 of the Action Plan, the Government wishes to extend the reflection period so that
presumed victims of trafficking are granted a temporary residence and work permit for up
to six months. A new temporary work permit for one year is proposed if the person has
broken away from the people responsible for the trafficking and a police investigation has
been initiated. More information about this measure is available at:
www.regjeringen.no/en/dep/jd/Documents-and-publications/Reports/Plans/2007/Stop-HumanTrafficking.html?id=458215
Portugal
Victims of trafficking are allowed a reflection period of from 30 to 60 days to decide whether
or not they will press charges against their trafficker(s). Such persons have a right to a
one-year residence permit, regardless of their decision.